Two hundred and thirty years later, those who then criticized the Hamiltonian solution have every reason to fear the power of the judges in the United States – and we, too, dear readers.
US Supreme Court justices often cite Alexander Hamilton, one of the “founding fathers” who, under the pseudonym of Publius and the 78th edition of the Federalist Papers in May 1788, explained to his opponents that the he challenged civic rights by giving them life-long power. Hamilton used the argument of Montesquieu, who wrote that the judiciary, “of the three state powers, is what is next to nothing.” He added: “The judiciary will be the weakest of the three branches of power” because it has no influence on either the sword or the purse. In truth it must be said that it has neither strength nor will, but merely judgment. ” Thus, the life-force of the judges of the Supreme should not be seen as threatening. Two hundred and thirty years later,
The announcement of the withdrawal of Anthony Kennedy, the conservative judge who for 12 years was the tie vote between the four right-wing radicals and the four moderates in the Supreme Court, evoked that debate of the late eighteenth century. If Hamilton was mistaken, as he seems to have been mistaken, the power of the judges is exorbitant. And the fact remains that the door was opened for Trump to make his second nomination to the court, thereby being able to determine his political or even partisan majority for a long period, until the death or reform of the current judges.
If we ask ourselves whether these judges will be alienated from the purse and the sword, capable of relinquishing their strength and will to devote themselves to judgment, the answer must be at least dubious. Kennedy had already helped Trump in some very controversial decisions, such as accepting the ban on entry of citizens of some Muslim-majority countries. It had supported the Republican Party by allowing the gerrymandering, the manipulation of electoral constituencies in this case to devalue the Latin and Black vote. But he had previously opposed restrictions on the right to abortion and had allowed gay marriages.
But it is precisely these sentences which constitute the elementary principle of civil rights of the last fifty years, which may be at issue if Trump obtains the votes of the Senate to appoint a judge of his own color. The Roe Vs. Wade, which establishes the right to abortion, the sentence that established the federal power to regulate pollutant emissions, Obamacare and health services, the right to gay marriage, some limits to capital punishment, this is what may be the menu of one majority in the US Supreme Court.
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